Citation Nr: 1510215
Decision Date: 03/11/15 Archive Date: 03/24/15
DOCKET NO. 11-00 754 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
K.C. Spragins, Associate Counsel
INTRODUCTION
The Veteran had active service in the United States Air Force from March 1970 to May 1972. After release from active duty, he continued to serve in the Reserve Component (Air National Guard and Air Force Reserve) until February 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Thereafter, jurisdiction was transferred to the RO in Reno, Nevada.
In an August 2013 decision, the Board remanded the claim to the AOJ for additional development and adjudication. The case has since been returned to the Board for appellate review. As will be discussed below, there was substantial compliance with all remand directives, and the Board may proceed with adjudication.
The Board notes that the Veteran failed to appear for a scheduled Travel Board hearing in June 2013. The Veteran was again scheduled for a Travel Board hearing in September 2014. He requested that that the hearing be rescheduled in September 2014. In December 2014, the Veteran withdrew his previously submitted hearing request. Thus, there is no outstanding Board hearing request. See 38 C.F.R. § 20.704 (2014).
In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System paperless files associated with the case. A review of the VBMS file reveals a letter from VA scheduling the Travel Board hearing that was returned in September 2014, a September 2014 change of address request, the Veteran's September 2014 request for a rescheduled hearing, the December 2014 withdrawal if his hearing request, and a February 2015 informal hearing presentation. The remaining documents in both VBMS and Virtual VA are either duplicative of the records in the paper claims file or irrelevant to the issue on appeal.
FINDING OF FACT
The Veteran's current bilateral hearing loss did not manifest during service or within one year thereafter and is not otherwise related to his military service.
CONCLUSION OF LAW
Bilateral hearing loss was not incurred in active service, and sensorineural hearing loss is not presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103(A), 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fd. Cir. 2000). This analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show on the claims. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000).
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).
The notice requirements were met in this case by an August 2009 letter. This letter notified the Veteran of the information and evidence needed to substantiate and complete a claim for service connection, to include notice of what part of the evidence he should provide, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. Furthermore, the requisite notice was provided prior to the adjudication of the claim in December 2009. Accordingly, the duty to notify has been satisfied.
The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. 3.159(c), (d). This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that the VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (c)(4).
In this this case, the AOJ obtained the Veteran's service treatment records and all identified and available post-service treatment records. The Veteran was also afforded a VA examination in November 2009 to determine the nature and etiology of his bilateral hearing loss. The November 2009 VA examiner reviewed the claims file, considered the Veteran's reported symptoms and assertions, and provided a medical opinion with rationale. As such, the Board finds this VA opinion, along with the other evidence of record, is adequate to make a determination on the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).
In the Board's August 2013 remand, the AOJ was directed to schedule the Veteran for a Travel Board hearing and to send the Veteran notice of the hearing at his correct address. As noted above, the Veteran was scheduled for a hearing in September 2014 and the letter providing notice of the hearing was returned. However, the Veteran ultimately withdrew his request for a hearing in December 2014. Accordingly, the Board finds the AOJ has substantially complied with the instructions of the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
In light of the foregoing, the Board finds that the VA's duties to notify and assist have been satisfied, and thus, appellate review may proceed without prejudice to the Veteran.
II. Law and Analysis
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2014). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection.
Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.
For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As an organic disease of the nervous system, which includes sensorineural hearing loss, is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The results of the November 2009 VA examination show that the Veteran has bilateral hearing loss that meets these criteria.
Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993).
In this case, the Veteran was examined for enlistment in February 1970 at which time his ears were found to be normal. His pure tone thresholds on audiological evaluation, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
5
5
15
LEFT
0
0
0
10
0
At that time, the Veteran denied any current problem or history of hearing loss or ear trouble on his report of medical history
In-service hearing conservation data from February 1971 noted that the Veteran worked on the flight line as a jet mechanic and that his primary noise exposure was jet engines. He was also documented as having worn ear protection. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
15
15
20
LEFT
15
10
15
15
20
The separation examination from May 1972 noted that the Veteran's ears were normal. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
10
5
5
10
LEFT
10
5
10
10
0
The post-active duty medical records contain a September 1972 periodical examination. His ears were marked as normal on clinical evaluation. His pure tone thresholds on audiological evaluation, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
0
0
5
20
LEFT
5
0
10
10
5
In October 1972, hearing conservation data again noted that the Veteran wore ear protection, was exposed to jet engine noise, and worked as a jet mechanic on the flight line. Later that month, a separate hearing conservation data documented that the Veteran wore ear protection while working as an aircraft electric repairman in the hanger shop. He was also exposed to jet engine noise in this role. His pure tone thresholds on audiological evaluation, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
0
0
5
20
LEFT
5
0
10
10
5
The Veteran also reported on his October 1972 report of medical history that he had never experienced hearing loss or ear problems and he did not currently have this problem.
On the authorized audiological evaluation in October 1973, the hearing conservation data noted that pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
0
5
25
LEFT
10
0
5
15
5
At this time, the Veteran worked in his previous role as a jet mechanic on the flight line. He was marked as having worn ear protection. He also did not report any hearing loss or problems with his ears in his October 1973 report of medical history.
In September 1974, hearing conservation data stated that the Veteran wore ear protection while working as a jet engine technician on the flight line. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
5
5
15
20
LEFT
5
5
15
20
15
In both his September 1974 and October 1975 report of medical history, the Veteran reported that he did not have hearing loss or ear problems.
The Veteran underwent a VA examination in November 2009. The pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
25
45
45
LEFT
20
15
25
35
35
Speech audiometry revealed speech recognition scores on the Maryland CNC word list of 100 percent in the right ear and of 100 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss. The November 2009 examiner noted that the Veteran had a history of noise exposure in the military to aircraft and jet engines, with consistent use of hearing protection. The examiner noted that the Veteran's hearing tests from February 1970, May 1972, September 1972, and October 1972 showed normal bilateral hearing, observing that there was a slight threshold shift between the testing results recorded at entry in February 1970 and upon separation in May 1972. The Veteran reported that his hearing issues had their onset in 1979. His occupational noise exposure was due to using farm equipment several times per week. The Veteran reported using hearing protection in these activities, but he had not begun doing so until the past few years. He also experienced recreational noise exposure from target shooting, hunting, power tools. He occasionally used hearing protection during these pursuits.
The record also contains a January 2011 private examination. The results are displayed in graphical form that has not been converted to an appropriate numerical form. But the interpretation of a graphical audiogram is a finding of fact to be made by the Board in the first instance. Kelly v. Brown, 7 Vet. App. 471 (1995). If the Board is unable to interpret the graphical audiogram due to unclear results or several possible interpretations, then the Board must remand the results for translations by an appropriate specialist. Savage v. Shinseki, 24 Vet. App. 259 (2011); Kelly, 7 Vet. App. at 471. Here, the Board finds that the graphical representation is clear and can be interpreted, as the private audiologist provided a legend for the graphical results. Moreover, there is no dispute that the Veteran currently meets the criteria of 38 C.F.R. § 3.385. Accordingly, a remand for interpretation of the January 2011 private examination is not necessary.
In this regard, the January 2011 private examination revealed the following pure tone thresholds, in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
10
30
55
50
LEFT
5
10
25
40
45
Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. (There was no notation to the report as to whether the speech discrimination scores were completed through use of the Maryland CNC word test, as required pursuant to the applicable rating criteria. See 38 C.F.R. § 4.85).
In his August 2009 original claim, the Veteran sought benefits for bilateral hearing loss and reported that his claimed disorder began in 1971. In a statement from July 2009, the Veteran stated he worked as an air mechanic in the Air National Guard after discharge. He added that he later worked for a telephone company in a managerial role after service in which he did not experience any significant noise exposure. In his December 2009 notice of disagreement, the Veteran stated that he worked in an office setting after service. He reported that he first noticed his hearing loss in 1971, but found it hard to say when it began during the November 2009 examination. He also commented that his hearing loss became a major problem in the 1970's.
The Board will first consider the applicability of 38 C.F.R. § 3.303(b) to the Veteran's claim of entitlement to service connection for sensorineural hearing loss. Neither sensorineural hearing loss nor a manifestation sufficient to identify the disease entity are shown during service. Instead, the hearing tests taken upon induction to service in February 1970 and before separation from service in May 1972 had normal results. The November 2009 VA examiner explained that no significant threshold shifts were noted at the time of the Veteran's separation. It is clear from the November 2009 VA examiner's opinion that there was not a manifestation sufficient to identify the disease in service.
Although the Veteran states that his hearing loss began in service in 1971, the pertinent regulations require that manifestations are "noted" in the service records, and that is not the case in this instance. Thus, while currently-diagnosed sensorineural hearing loss is a chronic disease under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations of sensorineural hearing loss were noted in the service records.
In addition, the evidence does not reflect that sensorineural hearing loss manifested within one year of service. The record reflects that a diagnosis of sensorineural hearing loss was first noted in the November 2009 VA examination. Moreover, the November 2009 VA examiner stated that the test results from the audiological evaluations conducted in September 1972 and October 1972 showed normal hearing bilaterally. As such, service connection under 38 C.F.R. 3.303(b) is not warranted, and sensorineural hearing loss may not be presumed to have been incurred in service. 38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.307, 3.309.
The Board acknowledges the Veteran's statements that his hearing loss began in service. He has claimed that his hearing loss first began in 1971. The Veteran is competent to report his symptoms in service, to include diminished hearing. Although lay persons are generally not competent to offer evidence which requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has or had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).
Lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007).
In this case, the Board finds that the Veteran is competent to state that he has had diminished hearing since military service. However, his allegations are inconsistent with the contemporaneous record and are thus not significantly credible. As previously noted, there is no evidence of any complaints, treatment, or diagnosis of hearing loss in service, and upon objective testing, his hearing was documented as being within normal limits at the time of his separation from service. He also denied having a medical history of ear trouble and hearing loss at separation. As such, there is affirmative evidence showing that he did not have hearing loss or experience diminished hearing at the time of his separation from service.
For the foregoing reasons, the Board finds that the history regarding the onset of the Veteran's hearing loss in service to be not credible. Accordingly, the Board finds that the Veteran's bilateral hearing loss did not manifest in service or sensorineural hearing loss within one year thereafter and that there has been no continuity of symptomatology of hearing loss since his period of service.
Nevertheless, the Board does note that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R.
§ 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).
Likewise, as noted above, service connection may be granted for hearing loss (or other disability) diagnosed post-service upon a showing of a nexus between that disability and the injury (to include noise exposure) or disease in service. See, e.g., 38 C.F.R. § 3.303(d).
The Veteran has argued that he was exposed to acoustic trauma during his military service and that this exposure was the injury that caused his hearing loss. The Veteran is considered competent to relate a history of noise exposure during service, and there is no reason to doubt the credibility of his statements regarding military noise exposure. See 38 C.F.R. § 3.159(a)(2). In fact, his DD 214 shows that that his military occupational specialty (MOS) was a jet engine mechanic and his service treatment records reflect that he was exposed to jet engine noise in this specialty.
Moreover, as shown above in the 2009 and 2011 examinations, the Veteran currently has bilateral hearing loss at a level that is considered disabling for VA purposes and he has been diagnosed with bilateral sensorineural hearing loss. Thus, the remaining question is whether the Veteran's current bilateral hearing loss is related to his noise exposure in service.
Based on a review of the claims file and the Veteran's reported history, the November 2009 VA examiner opined that it was less likely as not that the Veteran's bilateral sensorineural hearing loss was caused by or a result of acoustic trauma in service. In forming this opinion, the examiner noted that the Veteran reported that his hearing loss did not begin until the later 1970's to early 1980's. Though the Veteran later stated it was hard to ascertain when it began at the time of the examination, the Board notes that he ultimately indicated that it began several years after service. His report during the examination is consistent with the results from the audiological evaluations conducted in September 1972, October 1972, October 1973, and September 1974; all of which do did not demonstrate an impairment under 38 C.F.R. § 3.385. Moreover, the Veteran also reported that he did not have hearing loss or ear problems in each of the available report of medical histories conducted after his discharge, including one as late as October 1975.
The November 2009 VA examiner also addressed the fact that post-service, the Veteran had some noise exposure and used hearing protection occasionally. The Board notes that the examiner characterized the Veteran's use of farm equipment as occupational noise exposure while the Veteran has claimed that he did not have occupational noise exposure after active service. It is apparent from the record that the Veteran experienced some occupational noise exposure after discharge from active duty as he continued to work near jet engines in the Air National Guard. See October 1972 Hearing Conservation Data; October 1973 Hearing Conservation Data; September 1974 Hearing Conservation Data. In addition, the November 2009 examiner's opinion was not based solely on occupational noise exposure, but on the total picture of the Veteran's post-service noise exposure based on the activities and hearing protection use that that the Veteran specifically reported during the examination. Thus, the examiner offered a rationale for the opinion reached that is supported by the evidence of record.
The Board also acknowledges that laypersons are sometimes competent to provide opinions regarding such medical matters as diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Board finds that the November 2009 VA examiner's opinion is more probative, as it was provided by an audiologist with knowledge, training, and expertise and is supported by a complete rationale based on such knowledge, a review of the claims file, and the Veteran's medical history.
Based on the foregoing, the Board finds that the Veteran's bilateral hearing loss is not related to his service, to include the noise exposure therein. Accordingly, the claim for service connection for bilateral hearing loss is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable based on these facts. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
Entitlement to service connection for bilateral hearing loss is denied.
____________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs